Professor’s #TheyLied Defamation Case Against National Academy of Sciences (Related to Sexual Harassment Allegations) Can Go Forward

From today’s D.C. Circuit decision in Butters v. Nat’l Acad. of Sciences, by Judge Douglas Ginsburg, joined by Judges Karen LeCraft Henderson and Florence Pan:

This consolidated appeal involves claims of defamation, defamation by implication, and false light invasion of privacy relating to the rescission of Luis Jaime Castillo Butters’s membership in the National Academy of Sciences. Castillo brought these claims against the NAS and its president, Marcia McNutt, after they made statements concerning Castillo’s ouster….

Castillo is a professor of archaeology at the Pontifical Catholic University of Peru. The NAS, a “private, nonprofit organization of the United States’ leading researchers,” elected Castillo to be an international member in 2012. In the Spring of 2021, a former student of Castillo’s filed a complaint with the NAS. She publicly accused Castillo of sexual harassment in Peru and asked the NAS to expel him.

The NAS rescinded Castillo’s membership on October 9, 2021. On the 13th, President McNutt informed NAS members by email that Castillo’s membership had been rescinded for a Code of Conduct violation. That email mentioned a password-protected website with further information for NAS members. On October 15, the NAS made the news of Castillo’s ouster publicly available on the organization’s website: “Luis Jaime Castillo Butters; NAS Code of Conduct violation, Section 4; membership rescinded.” Section 4 not only requires members to treat others with respect and collegiality but also broadly prohibits all forms of discrimination, harassment, and bullying.

The court concluded that Castillo had adequately alleged that these statements were false and had a defamatory meaning:

In the [district] court’s view, Castillo’s allegation that he did not violate the Code of Conduct was insufficient. Instead, Castillo needed to allege that the defendants rescinded Castillo’s membership for a reason unrelated to a Code of Conduct violation.

[T]he issue of falsity relates to the defamatory facts implied by a statement. For instance, the statement, “I think Jones lied,” may be provable as false on two levels. First, that the speaker really did not think Jones had lied but said it anyway, and second that Jones really had not lied. It is, of course, the second level of falsity which would ordinarily serve as the basis for a defamation action, though falsity at the first level may serve to establish malice where that is required for recovery.

The district court considered only the first level, that is whether Castillo claimed the proffered reason for Castillo’s membership rescission was false, which he did not. At the underlying second level, however, the question is whether Castillo violated the Code of Conduct. Because Castillo denied that he violated the Code of Conduct, he has effectively as well as expressly alleged that both the October 13 and October 15 statements were false….

[Moreover, a]fter summarizing a D.C. Court of Appeals decision that a certain statement was capable of a defamatory meaning, the district court then wrote: “Here, by contrast, Defendants stated only that they rescinded Plaintiff’s membership because he violated the Code of Conduct, which could have meant anything from harassment to bullying to discrimination to treating others with disrespect.”

To the extent the district court held the October 13 and the October 15 statements are not capable of a defamatory meaning, we disagree. The October 15 statement that Castillo violated Section 4 of the Code of Conduct is capable of a defamatory meaning because Section 4 proscribes odious conduct, to wit, sexual harassment. That Section 4 encompasses some less serious conduct—such as “treating others with disrespect”—does not defeat the commonsense conclusion that the statement could be “reasonably understood in [a] defamatory sense,” The October 13 statement may not have specified which section of the Code of Conduct Castillo supposedly violated, but considering that other sections of the Code likewise proscribe serious forms of ethical or scientific misconduct, that distinction is inconsequential. Moreover, members of the scientific community both inside and outside of the NAS would also likely understand that the NAS would not expel a member absent a serious transgression of the Code of Conduct….

The parties briefed whether Castillo adequately alleged the defendants were negligent in publishing the allegedly defamatory statements [which is another necessary element of a defamation claim under D.C. law]. We do not reach this issue because the district court did not pass upon it. On remand, the district court should determine in the first instance whether Castillo alleged facts that plausibly suggest negligence.

But Judge Ginsburg, joined by Judge Pan, concluded that Butters hadn’t adequately alleged defamation by implication as to McNutt’s comments

[On October 15], ScienceInsider published a story about the revocation of Castillo’s NAS membership under the subheading: “Sexual harassment investigation triggered ejection of Luis Jaime Castillo Butters.” It further said this was the “third time in 5 months that the prestigious academy has ejected a member for sexual harassment.” McNutt, presumably contacted by ScienceInsider to provide a comment, was quoted as saying NAS “members need to be role models not only in what they have achieved, but also in setting the highest standards for professional conduct.” …

Defamation by implication is “an area fraught with subtle complexities.” Courts have required “an especially rigorous showing where the expressed facts are literally true.” This court has summarized the analysis as follows:

[I]f a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning.

For example, an article that includes “suggestive juxtapositions, turns of phrase, or incendiary headlines” may indicate the author intended or endorsed a defamatory meaning….

[McNutt’s “need to be role models”] statement alone provides no indication that McNutt intended or endorsed a defamatory implication. As the defendants argue, any possible defamatory inference necessarily arises from other parts of the ScienceInsider article, for which neither the NAS nor McNutt is responsible.

Castillo’s claim of defamation by implication also lacks any supporting factual allegations about “the particular manner … in which the true facts [were] conveyed.” The allegation that “McNutt encouraged and fueled the production of the article by providing the statements quoted” is conclusory; the allegation that the NAS and McNutt failed to “correct the implication that [they] indeed revoked Castillo’s membership due to sexual harassment” charges is a negative inference, not affirmative evidence that they intended or endorsed a defamatory inference. In sum, the Second Amended Complaint contains no allegation that, when viewed most favorably to Castillo, renders plausible his claim of defamation by implication.

Judge Henderson dissented as to the McNutt statement in the ScienceInsider article:

The majority concludes that none of “the content of the [ScienceInsider] article beyond the [defendants’] statements” is relevant because the article was written by a third party. But the defamatory content of a third-party news article is absolutely relevant in an implied defamation case to the extent the defendant “impliedly adopt[s]” the “stigmatizing allegations contained in [the] news[ ] article.” …

As for the article, ScienceInsider published its piece the same day that NAS publicly announced it had expelled Castillo for violating Section 4 of its Code of Conduct that prohibits, among other things, sexual harassment. The ScienceInsider article recounted at length the sexual harassment allegations lodged against Castillo by his former student, Marcela Poirier, the complaint Poirier lodged with NAS and the subsequent “[s]exual harassment investigation [that] triggered [Castillo’s] ejection” from NAS. The article stated that Castillo’s ouster from NAS “mark[ed] the third time in 5 months that the prestigious academy has ejected a member for sexual harassment.”

“The ejection,” the article continued, “was confirmed by [an] NAS spokesperson.” And after summarizing the earlier sexual harassment cases—one involving an astronomer and the other an evolutionary biologist—the article quoted McNutt with the following statement: “NAS President Marcia McNutt says the removals should convey that ‘[NAS] members need to be role models not only in what they have achieved, but also in setting the highest standards for professional conduct.'” …

The majority does not dispute that the ScienceInsider article was “capable of defamatory meaning.” “Its very title indicated” that NAS revoked Castillo’s membership “because of sexual misconduct.” See J.A. 57 (“Leading Peruvian archaeologist ousted by U.S. Academy of Sciences[:] Sexual harassment investigation triggered ejection of Luis Jaime Castillo Butters.”). And the body of the article made the connection explicit: Castillo’s “ouster … marks the third time in 5 months that the [NAS] has ejected a member for sexual harassment.”

The sole question, then, is whether it is plausible at this stage to conclude that NAS’s and McNutt’s statements in the article “intend[ed] or endorse[d]” that defamatory inference. With no difficulty, I conclude that it is….

For more on this dispute between the majority and the dissent (and on other matters), read the whole opinion.

Milton Johns represents Butters. Thanks to Andy Patterson for the pointer.